Is it unconstitutional for bodies other than courts of law to exercise
judicial functions?

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Request for Question Clarification by tutuzdad-ga on 07 Apr 2006 07:18 PDT

It certainly appears that it is unconstitutional for bodies other than
courts of law to exercise Judicial functions ? by Judicial definition
(that is, constitutionally speaking). One might often confuse the
powers of Regulatory agencies such as the Federal Trade Commission
(FTC), the Securities and Exchange Commission (SEC), and the Federal
Communications Commission (FCC), who have the power to make rules,
adjudicate disputes, and impose sanctions if necessary, with Judiciary
powers. Likewise, non-regulatory agencies such as the Social Security
Administration can conduct investigations or administer benefits such
as workers' compensation, pensions, and government insurance as they
determine applicable. Administrative agencies also combine many of the
functions of the three branches of the U.S. government and sometimes
initiate investigations or prosecutions, but despite the powers that
ALL these agencies ?seem? to have, all these entities? decisions are
ultimately subject to Judicial review, appeal or adjudication in a
court of law.

OUTLAWS LEGAL SERVICE
http://www.doprocess.net/files/outlaw~1.htm

The structure and intent of Article III of the constitution is explained this way:

?Judicial power is the authority to exercise judicial functions. All
judicial functions involve by definition an unbiased decision about
the interpretation and application of law to a particular set of facts
contested by litigants in a court of law. Judicial connotes the power
to punish, sentence, and resolve conflicts.  Article III of the
Constitution only provides the barest outline for the U.S. judicial
system; the Judiciary Act of 1789 fills in some of the details; and
the current operating authority is Title 28 of the U.S. Code. The
Judiciary Act established 6 Supreme Court justices; the number was
gradually increased until it reached a total of 10 in 1863; after the
Civil War, vacancies reduced the number to 7; and Congress finally
fixed the number at 9. The founding fathers also envisioned the
Supreme Court justices as circuit-riders, participating in the federal
circuit (but not district) courts. This proved burdensome on the
Justices, so in 1891, a system of intermediate appellate courts were
sandwiched between the district courts and the Supreme Court. The
district courts would have original jurisdiction, the appellate courts
exclusive jurisdiction, and the Supreme Court discretionary
jurisdiction. Although the terms judicial power and jurisdiction are
frequently used interchangeably, jurisdiction is defined as a fixed
authority to hear and determine the subject matter in controversies
whereas judicial power is the flexible sum total of powers a court
exercises when it assumes jurisdiction. The Constitution grants
federal courts both criminal and civil contempt powers to enforce its
decisions. Criminal contempt is used mainly to vindicate the Court;
civil contempt to enforce the rights of parties; and federal courts
can charge a party with both types of contempt. The type of punishment
the Court can issue out for contempt is called summary punishment,
which immediately overrides all other punishments the party may be
subject to or serving. Other implied powers exist such as injunctive
relief, imprisonment for contumacy (stubborn refusal to comply),
bad-faith litigation, failure to obey a writ of mandamus (an order
telling a public official how to do their job), and of course, habeas
corpus remedies declaring a whole state's policing or detention system
unconstitutional and appointing masters. Judicial power includes the
power to act within the limits of statutes and rules for punishments
and also in areas not covered by statutory authority. About the only
limitation is that federal courts cannot stay state court proceedings,
but there are even exceptions to that.?

CONSTITUTIONAL STRUCTURE
http://faculty.ncwc.edu/toconnor/410/410lect01.htm

Is this the type of information you were looking for?

Tutuzdad-ga

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Clarification of Question by cedluwat-ga on 07 Apr 2006 15:27 PDT

I should have stated 'judicial function' in the UK....I accept
responsibility for my failure to do so.  Sincere apologies.

>but despite the powers that
ALL these agencies ?seem? to have, all these entities? decisions are
ultimately subject to Judicial review, appeal or adjudication in a
court of law.

Doing legal research in Iowa and nearby states (N.W. 2nd Reporter) in
the 80's, I found consistently that attempts to obtain judicial review
of rulings of administrative courts (judicial functions of government
agencies, such as State Department of Transportation, etc) were
rebuffed with the statement that no such rulings would be overturned
by regular (constitutional) courts, unless the result "shocked the
judicial conscience," whatever on earth that means. So, I find it a
false statement that such administrative courts are constitutional
because they are subject to judicial review by regular courts. It just
is not true.  There may or may not be real protection against wild and
extreme rulings, but no routine review at all.  Right or wrong the
admin court rulings are not reviewed.

The issue is moot because the customer has now said he/she is
interested in UK situations. As for my research however, I never
indicated that the judicial review was "automatic" merely that it is -
as is just about everything else in this country - "subject to" being
reviewed by a court. Anyone can sue anyone in the US for anyTHING and
you can appeal virtually all decisions to a higher judicial authority.
Decision appeals being rejected locally in Iowa does not, a
constitutional precedent or Federal law, make.

tutuzdad-ga

You may be right, but I did say the states in N.W. 2nd Reporter, not
just Iowa.  Just pointing out this error.  I would be curious if you
know of any state where constitional courts do hear admin cases anew?

And, particularly in a civil context, the U.S. Constitution only
refers to United States courts dealing with those issues which the
Constitution sets forth jurisdiction (the United States courts are
courts of "limited jurisdiction" which means that they can only hear
those "cases and controversies" for which either the Constitution or
statutes allow them to hear.)

For example, a federal court cannot hear a divorce case. 

The various state constitutions, therefore, are controlling in how
cases and controversies are heard. Although many states are virtually
identical in their judicial structures, some are markedly different.

State statute, of course, would set forth what administrative agencies
are permitted to hear, and whether that agency has exclusive
jurisdiction requiring the controversy to be heard there, and only
there, first; or whether the agency jurisdiction is concurrent with
the courts, permitted one to file first with the agency or with a
court. Appellate procedures would also be set forth in the statute.

As a practicing lawyer, I am fond of telling clients that the law is
easy - anybody can read the law and understand it - it is the court
rules that will cause you to lose the case - not the law.

It is not unconstitutional. If it were, all the religious courts that
deal with divorce and other personal matters would not be around.

I know at least that the Roman Catholicism has courts and so does
Judaism in the United States. They mostly deal with divorce and other
family matters. Even though these rulings are not viewed by the US
government, they are in fact courts and are legal rulings within the
religion and if they are not followed you are excommunicated.

Essentially, in the UK public bodies are accepted to be making
judicial decisions. The system of government is generally considered
to be split into three facets: the legislature, executive and
judiciary. This is known as 'separation of powers'. The divide here is
not clear and overlap does occur though (take the Queen, or
Attorney-General, for instance). In a simplified conception, the
legislature (usually Parliament) make the law. The executive (e.g. the
government, police, NHS, armed forces) apply the law (e.g. if a law
says that all citizens should get free health care - the NHS do so, if
a law states that murder is illegal - the police deal with this).

The judicial element carries out judicial functions - applying the law
to specific instances of fact to see if there has been an illegality.
The paradigm example of this is quite clearly the courts. The courts
are seen by many as a pure 'judicial' body, making only judicial
decisions. This too could be said of a tribunal e.g. immigration
appeals tribunal, employment tribunal.

In other areas the divide is more blurred. A planning officer would
generally be seen as part of the executive (those who execute the
'law' prescribed by the the legislature [commonly Parliament]), but in
hearing planning decisions also makes a judicial determination e.g.
does the law allow for X Co. to build a supermarket on site Y.
Ministers may also make such determination e.g. how long does prisoner
X have to spend in jail (as occured notably in the Bulger case),
should immigrant Y be deported. The Minister for the Home Office was
notably acting judicially in interning terrorist suspects in Belmarsh
prison.

There is nothing wrong with this in the eyes of most constitutional
theorists e.g. Raz, Wade. However, the European Convention of Human
Rights (enacted in English law by the Human Rights Act 1998)
prescribed under Article 6 that all citizens have a right to fair
trail and decisions again them being fair. Hence, if aq minister is
deciding whether you can build your supermarket 'there' he may be
biased - he may have had a hand in making the law that he purports to
apply. The solution that our courts have come to is that this is ok,
as long as the courts can invigilate, if and when the need arises.
This occurs through the process of Judicial Review. This does not mean
that whenever the courts disagree with a decision made by another
body, they can intervene. A private citizen must first bring
procedings for judicial review. Then the court can only overturn the
decision if it is 'illegal', 'unreasonable' or 'irrational'. These are
NOT easy standards to meet. Most applicants leave court disappointed.